Abstract
On 27 October 1998, President Clinton signed into law the International Religious Freedom Act of 1998 (IRFA), which had recently been adopted unanimously by both the Senate and the House of Representatives.4 IRFA now requires the US State Department to promote “international religious freedom” as a part of the foreign policy of the United States, to issue an annual report on the status of religious freedom in all countries of the world (except the United States), and to establish an office in the State Department, headed by an Ambassador at Large, to oversee implementation of the law. The law also requires the president to take actions in response to each state that violates standards of international religious freedom. IRFA further established a quasi-independent US Commission on International Religious Freedom to make recommendations to the US government on religious freedom issues and to review State Department activities. With the adoption and implementation of IRFA, the United States has become the state that most visibly promotes the rhetoric of freedom of religion in the international arena.
From the point of view of Europeans and Asians, Muslims, Africans, Latin Americans, the United States seems at once too mighty to ignore, too magnanimous to mock, too arrogant to admire, too erratic to trust, too befuddled to explain.
—Walter A. McDougall2
The inconstancy of American foreign policy is not an accident but an expression of two distinct sides of the American character. Both are characterized by a kind of moralism, but one is the morality of decent instincts tempered by the knowledge of human imperfection and the other is the morality of absolute self-assurance fired by the crusading spirit.
—Senator J. William Fulbright3
The author wishes to express his appreciation for the valuable assistance provided by Ms. Rana Lehr Lehnardt. He also wishes to acknowledge the helpful advice and suggestions provided by Professor Cole Durham, Dr. Rosalind Hackett, Dr. David Little, Ambassador Robert Seiple, Ms. Laura Bryant Hanford, Dr. Thomas Farr, Ms. Alexandra Arriaga, Ms. Melinda Reingold, and others. He also deeply appreciates the willingness of a number of persons who were involved in the Wolf-Specter/IRFA events to share their recollections, interpretations, and copies of many of the documents cited herein. Nevertheless, the author accepts full responsibility for all statements, interpretations, and analyses.
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References
Walter A. McDougall, Promised Land, Crusader State: The American Encounter with the World Since 1776 ( Boston: Houghton Mifflin Company, 1997 ), 9.
J. William Fulbright, The Arrogance of Power (New York: Random House, 1966), 2 4 5–6.
The International Religious Freedom Act of 1998 22 USC 6401 (Public Law No. 105–292, 112 Stat. 2787, as amended by Public Law No. 106–55, 113 Stat. 401 and Public Law No. 107–228, 116 Stat.1408). The year 1998 witnessed one of the most contentious partisan struggles in the history of the US Congress and government. In 1998, the dominant political issue was the pending impeachment of President Clinton, and it was a year of bitter political fighting in the United States. That IRFA was adopted unanimously signals its rise above the partisan fray that marked the year. There has as of yet been no comprehensive study of IRFA, though some studies have appeared. See, e.g., Christy Cutbill McCormick, “Exporting the First Amendment: America’s Response to Religious Persecution Abroad,” Journal of International LegalStudies4 (1998): 283–334
Kristin N. Wuerffel, “Discrimination Among Rights?: A Nation’s Legislating a Hierarchy of Human Rights in the Context of International Human Rights Customary Law,” Valparaiso University Law Review 33 (1998): 369–412
T. Jeremy Gunn, “A Preliminary Response to Criticisms of the International Religious Freedom Act of 1998,” Brigham Toung University Law Review (2000): 841–65
Peter G. Danchin, “U.S. Unilateralism and the International Protection of Religious Freedom: The Multilateral Alternative,” Columbia Journal of Transnational Law 41 (2002): 33–135
T. Jeremy Gunn, “American Exceptionalism and Globalist Double Standards: A More Balanced Alternative,” Columbia Journal of Transnational Law 41 (2002): 137–52 (critique of Danchin).
Rosalind I. J. Hackett, Mark Silk, and Dennis Hoover, eds., Religious Persecution as a U.S. Policy Issue (Hartford: Center for the Study of Religion in Public Life, 2000), 57 (Ira Rifkin). This publication is a revised transcript of the proceedings of a conference held at Trinity College in Hartford, Connecticut, on 26–27 September 1999—one year after IRFA was enacted. (The name following the page number in the citation refers to the speaker who is being cited.)
See Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of HumanRights (New York: Random House, 2001).
For the involvement of the United States and its citizens in such activities, see Paul Gordon Lauren, TheEvolution of International Human Rights (Philadelphia: University of Pennsylvania Press, 1998), 172–240. Unfortunately, as is frequently the case with the United States, its active involvement with the drafting of international agreements is followed either by a delay in ratification, a failure to ratify altogether, or a ratification with reservations, understandings, and declarations. It took the US Senate almost twenty years to ratify the ICCPR, and it has never ratified the American Convention on Human Rights or a number of other major international human rights conventions. The ambivalent approach by the United States to international relations generally—sometimes highly activist and multilateral and sometimes highly autonomous and unilateral—is exemplified by its approach to human rights.
See Donna J. Sullivan, “Advancing the Freedom of Religion or Belief through the UN Declaration on the Elimination of Religious Intolerance and Discrimination,” American Journal of International Law 82 (1988): 487–520.
For publications on the OSCE and religion, see T. Jeremy Gunn, “The Organization for Security and Cooperation in Europe and the Rights of Religion or Belief,” in Peter G. Danchin and Elizabeth A. Cole, eds.,Protecting the Human Rights of Religious Minorities in Eastern Europe (New York: Columbia University Press, 2002), 222–50; Harm J. Hazewinkel, “Religious Freedom in the OSCE/CSCE process,” Helsinki Monitor 9, no. 3 (1998): 9–16; T. Jeremy Gunn, “Majorities, minorities, and the rights of religion or belief,” Helsinki Monitor 9, no. 3 (1998): 38–44; Malcolm D. Evans, Religious Liberty and International Law in Europe (Cambridge: Cambridge University Press, 1997), 366–70. For the role of the United States in the Helsinki process, see William Korey, The Promises We Keep: Human Rights, the Helsinki Process, and American Foreign Policy ( New York: St. Martin’s Press, 1993 ).
Department of State, Report on Human Rights Practices in Countries Receiving U.S. Aid (8 February 1979), 624.
See, e.g., David Litde, Ukraine: The Legacy of Intolerance (Washington, D.C.: United States Institute of Peace Press, 1991 ); David Little, Sri Lanka: The Invention of Enmity ( Washington, D.C.: United States Institute of Peace Press, 1994 ).
Johan D. van der Vyver and John Witte Jr., eds., Religious Human Rights in Global Perspective 2 vols. (The Hague: Martinus Nijhoff, 1996). Among the other leading publications were Kevin Boyle and Juliet Sheen, eds., Freedom of Religion and Belief: A World Report (London: Routledge, 1997) (the culmination of an effort that began in the early 1990s); Bahiyyih G. Tahzib, Freedom of Religion or Belief: EnsuringEffective International Legal Protection (The Hague: Martinus Nijhoff, 1996); Evans, Religious Liberty andInternational Law in Europe.
There are several plausible reasons for the developing interest. These include the collapse of the Soviet bloc and the opening of that region both to foreign missionary activity and to older antagonisms, as well as to the rise of what has loosely been described as “fundamentalisms.” The Internet enables religious communities to make better contact with their coreligionists and to better publicize their plights. Thus, during the 1990s, religion became more salient, while suffering on the account of belief became more visible.
In 1995, Karen S. Lord became the Counsel for Freedom of Religion to the Helsinki Commission, and she later became the first person employed by the US government to work full-time on the issue of international religious freedom.
US] Commission on Security and Cooperation in Europe, Religious Liberty in the OSCE: Present andEuture and Religious Liberty: The State Church and Minority Faiths (27 September 1995 and 28 November 1995).
It should be recognized, of course, that NGOs in the United States had been involved in concerns regarding religious freedom long before January 1996. One close observer asserts that “Human rights organizations have reported on religious persecution extensively for decades, and their international grassroots membership has campaigned on behalf of coundess religious prisoners of conscience” (Stephen Rickard, “Repression and Response,” SAIS Review 18 [Summer-Fall 1998]: 56–57). Paul Marshall acknowledged, despite their shortcomings, that Amnesty International and Human Rights Watch “have done more than almost any other organizations to bring religious persecution to our attention” (Paul Marshall, Their Blood Cries Out: The Worldwide Tragedy of Modern Christians Who Are Dying for Their Faith [Dallas: Word Publishing, 1997], 147). Among specialized NGOs that have been concerned about religious freedom are the International Religious Liberty Association (established in 1893), the Jacob Blaustein Institute, Project Tandem, and, more recently, the International Academy for Freedom of Religion and Belief.
For congressional hearings, see House Subcommittee on International Operations and Human Rights, Persecution of Christians Worldwide 104th Cong., 2d sess. (15 February 1996) and House Subcommittee on International Operations and Human Rights, Worldwide Persecution of Jews 104th Cong., 2d sess. (27 February 1996). For congressional resolutions, see H.R. 102,104th Cong. (1996) (Bahis); S. Con. Res. 71,104th Cong. (1996) (Christians); and H.R. 515,104th Cong. (1996) (Christians).
See Department of State, United States Policies in Support of Religious Freedom 8.
Department of State, United States Policies in Support of Religious Freedom, 69.
The Secretary of State’s Advisory Committee on Religious Freedom Abroad, Interim Report to the Secretaryof State and to the President of the United States (23 January 1998); Final Report of the Advisory Committeeon Religious Freedom Abroad (17 May 1999).
Final Report of the Advisory Committee on Religious Freedom Abroad (17 May 1999), 4.
th Cong., 1st sess., H.R. 1685. The bill was simultaneously introduced in the Senate as S. 772 by Republican Senator Arlen Specter of Pennsylvania. This paper only summarizes the complicated history of the transformation of the original Wolf-Specter bill into IRFA as it was finally adopted. The author is preparing a more lengthy study of these events.
The congressional staff members who are generally credited with drafting and championing the alternative bill were Laura Bryant (now Laura Bryant Hanford) in the office of Democratic Congressman Bob Clement of Tennessee, John Hanford in the office of Republican Senator Richard Lugar of Indiana, William Inboden in the office of Republican Congressman Tom DeLay of Texas, and Steve Moffitt in the office of Republican Senator Don Nickles of Oklahoma. These four later participated in an open discussion on the drafting of IRFA. See Hackett, Silk, and Hoover, eds., Religious Persecution as a U.S. Policy Issue. For praise of these staff members by Senators and Representatives see Congressional Record (8 October 1998), SI 1943, SI 1945, S12099. John Hanford later became the second US Ambassador at Large for International Religious Freedom.
For the full text of the Brady amendment, see House Committee on International Relations, H.R. 2431:Freedom From Religious Persecution Act, 105th Cong., 2d sess., 25 March 1998, 167–230.
Hackett, Silk, and Hoover, eds., Religious Persecution as a U.S. Policy Issue, 9 (Steve Moffitt). Laura Bryant described them as “furious, hectic last hours leading up to IRFA’s passage” (ibid., 10 [Bryant]).
Michael Horowitz was the general counsel at the Office of Management and Budget in the Reagan administration. At the Hudson Institute, Horowitz engaged in advocacy work to bring about changes in civil tort law in the United States. Nina Shea is a lawyer who founded the Puebla Institute, a religiousrights NGO that has since been folded into the Center for Religious Freedom at Freedom House. Shea published a thinly researched and highly polemical book that captured the imagination of many conservative political activists who were previously unaware of the problem of religious persecution (Nina Shea, In the Lion’s Den [Nashville: Broadman and Holman Publishers, 1997]). She took a much less active role in promoting the Wolf-Specter legislation than did Horowitz, though her book was cited frequently by proponents of the legislation.
Horowitz was described as the “mastermind of a crusade,” the “prime mover,” the “spearhead,” and the “spark of [the] budding movement” (Paul Blustein, “Crusader for a Religious Right,” The WashingtonPost 30 September 1997, E01). Congressman Frank Wolf described Horowitz as the person who “has probably done more than anyone else in the country to sensitize the religious community” to religious persecution (ibid., E01). Senator Joseph Lieberman, who cosponsored the Nickles bill, and others similarly credit Horowitz and Shea for their efforts. “I want to join Senator Nickles in paying tribute to the band of believers and batders who have in recent years brought this problem to the forefront of our attention— Michael Horowitz, Nina Shea, the host of leaders in the religious communities, and our colleagues here in Congress, Senator Specter and Congressman Wolf’ (Senate Committee on Foreign Relations, S. 1868: TheInternational Religious Freedom Act of1998 105th Cong., 2d sess. [12 May and 17 June 1998] [hereafter ”Senate Committee Hearings“], 6 [Senator Lieberman]).
For example, one official associated with the National Association of Evangelicals has been quoted as follows: ’“By force of personality, intimidation or moral suasion, he usually gets his way,’ says Richard Cizik who admits that Horowitz’s bare-knuckle tactics often disturb him. ‘I know people who disagree with Mike who feel that they’re persecuted’” (Blustein, “Crusader for a Religious Right,” E01). Kenneth Roth of Human Rights Watch is quoted as saying about Horowitz, “Under the guise of religious tolerance, he spreads divisiveness wherever he goes” (ibid). Stephen Rosenfeld called Horowitz “a terror as an advocate” (Stephen S. Rosenfeld, “Human Rights for Christians,” The Washington Post, 9 February 1996, A21). Another reporter concluded, after interviewing a number of participants involved in the legislative efforts, that “a number of religious groups, including the mainstream National Council of Churches, oppose his confrontational approach as counterproductive and likely to endanger missionaries” (Blustein, “Crusader for a Religious Right,” E01). Horowitz himself acknowledges that “I may be a pretty tough guy to be in partnership with because I still pound tables and want things to happen yesterday” (Michael Cromartie, “The Jew Who Is Saving Christians,” Christianity Today (I March 1999 ): 55.
See, e.g., House hearings on the Wolf-Specter bill: House Committee on International Relations, Freedomfrom Religious Persecution Act of 1997, Part II—Private Witnesses, 105th Cong., 1st sess., 10 September 1997 (hereafter “House Committee Hearings”), testimonies of Dr. Richard D. Land (President, Ethics and Religious Liberty Commission, Southern Baptist Convention), Dr. Donald Argue (President, National Association of Evangelicals), Mr. Donald Hodel (President, Christian Coalition), Mr. William J. Bennett (President, Empower America and former Secretary of Energy). See also the testimony of Richard Land on the Nickles bill, Senate Committee Hearings, 4 0 (Richard Land).
Cromartie, “The Jew Who Is Saving Christians,” 54 (quoting Michael Horowitz). Horowitz’s prediction has not proved true. Though the commission did condemn the persecuting regimes, there has, unfortunately, been an absence of “massive public pressure” on the regimes.
Congressman Frank Wolf, Congressional Record, 11 May 1998, H3019.
It was later stated that Congressman Wolf had always wished that his bill would offer protection for all religious communities, and not certain specified groups (Congressman Chris Smith, Congressional Record 14 May 1998, H3270). That may well be, but it would have been much easier to write such a provision than the one that actually appeared in the Wolf-Specter bill.
The bill does not identify what it means by “Islamic countries,” and we can only guess whether it means that the government purports to follow Shariah whether there are clerics in the government, or whether amajority (or even plurality) of the population is Muslim. The Wolf-Specter bill might well be read as being anticommunist and anti-Islam.
Representatives of this broader viewpoint also appeared in the House International Relations Committee hearings on the Wolf-Specter bill, including Father Drew Christiansen, Jerry Goodman, Stephen Rickard, and Lauren Homer. Several Senate Foreign Relations Committee witnesses can also be identified with this viewpoint, including John Akers (Chairman of the Board, East Gate Ministries International), Felice Gaer (Director, Jacob Blaustein Institute for the Advancement of Human Rights, American Jewish Committee), Bishop Munawar Kenneth Rumalshah (“Bishop Mano”) (Anglican Bishop of Peshawar Pakistan), and Dr. William R. O’Brien (Director, Global Center, Samford University). For the congressional staff members, see note 30 above.
House Committee Hearings, 26 (Drew Christiansen).
House Committee Hearings, 55 (Jerry Goodman).
Senate Committee Hearings, 102 (Felice Gaer). (Gaer later became chair of the US Commission on International Religious Freedom.) More directly, Joan Brown Campbell of the National Council of Churches, which ultimately did not endorse any version of the legislation, observed that the persecution viewpoint’s “emphasis on persecuted Christians... is theologically arrogant. ‘We are equally concerned about persecution of any faith’” (Jeffrey Goldberg, “Washington Discovers Christian Persecution,” The New Tork TimesMagazine (21 December 1992): 60.
House Committee Hearings, 26 (Drew Christiansen). Sanctions, if “used wisely and sparingly,” Jerry Goodman testified, “are likely to be most effective if placed in the context of other strategies and, above all in the context of other tactics.... [Q]uiet diplomacy is necessary and useful” (ibid., 54 [Jerry Goodman]).
Senate Committee Hearings, 105 (Felice Gaer).
Ibid., 57 (“high handed”), 61 (“persecute the persecutors”) (Bishop Mano). Not surprisingly, Senator Nickles also recognized the downside of imposing sanctions (ibid., 3, 9 [statements of Senator Nickles]). An article published in October 1998 reported that “Nickles believed that the Wolf-Specter bill’s provisions for automatic sanctions against the worst persecuting countries would lead to fruitless confrontations, negative fallout on indigenous Christians and missionaries, and an America isolated from it allies” (Tony Carnes, “Religious Persecution Bill Encounters Stiff Resistance” [Christianity Today 5 October 1998, 26]).
House Committee Hearings, 59–60 (Lauren Homer).
Senate Committee Hearings, 112–13 (John Akers).
Hackett, Silk, and Hoover, eds., Religious Persecution as a U.S. Policy Issue 11 (Laura Bryant).
The primary responsibility of the Ambassador at Large shall be to advance the right to freedom of religion abroad, to denounce the violation of that right, and to recommend appropriate responses by the United States Government when this right is violated“ (IRFA, sec. 101[c][l]).
The fifteen possible presidential actions are found at IRFA, sec. 405(a).
It is interesting to note one significant difference between many of the original supporters of Nickles and IRFA and those who supported Wolf-Specter. This difference was not one of political viewpoint (left versus right), but of one viewpoint that arose out of substantial international experience dealing with religious freedom and religious persecution (Nickles-IRFA), while the other arose out of domestic US experience in lobbying and pressuring Congress and the United States government. In examining the backgrounds of supporters of Wolf-Specter, it can be noted that the vast majority had very little, if any, experience in foreign policy and had not spent a significant amount of time living outside of the United States. The perspective of most Wolf-Specter supporters, who had little international experience, may be contrasted with that of Mr. Sam Ericsson, who is well regarded by many Wolf-Specter supporters, but who has had a significant amount of international experience. In a letter to his friend, Congressman Wolf, Ericsson criticized the Wolf-Specter legislation: “First the philosophical cornerstone of the Act is retaliatory—’ an eye for an eye, tooth for a tooth.’ This troubles me.... Second, I expressed concern about the list of countries identified as being particularly troublesome.... Third, the way I read the thrust and possible application of the Bill, it ignores any progress that may have been made in any given country. After spending eight years and over 20,000 hours on the international side of the issue, I conclude that it is very difficult to take accurate ‘snapshots’ of conditions within some countries” (Samuel E. Ericsson, Letter to Congressman Frank R. Wolf, 9 March 1998, 1–2). Ericsson cautiously endorsed the Wolf- Specter bill. However, after the introduction of the Nickles bill, Ericsson wrote an enthusiastic letter to Senator Nickles praising the approach that resulted in IRFA (Samuel E. Ericsson, Letter to Senator Don Nickles, 2 May 1998 ).
Department of State, Annual Report on International Religious Freedom 2000\ 551–53.
Ibid., 555–62 (Appendix D). 76 For critiques of the Annual Reports, see Report of the United States Commission on International Religious Freedom, 1 May 2000, 59–66, and Rosalind I.J. Hackett (unpublished paper delivered at Harvard University, May 2001 ).
Although Congress has apparendy not released it publically, the author obtained a copy of the first “presidential actions” report, which was dated 22 October 1999. The 1999 report consists of a threepage cover letter and a ten-page Memorandum of Justification. The report is not classified.
As originally conceived, the commission would have ceased to exist in 2003. Amendments in the year 2002, however, prolonged the life of the commission until the year 2011 and altered the duration of commission membership. Public Law 1 0 7–2 2 8, 1 1 6 Stat. 1409.
Report of the United States Commission on International Religious Freedom (1 May 2000); Report of theUnited States Commission on International Religious Freedom (1 May 2001) (hereafter “Commission 2001 Report”). The Commission 2001 Report was supplemented by an addendum on 14 May 2001, which also contains an individual opinion by Commissioner al-Marayati that dissents from the commission’s decision not to include a statement on Israel and the Occupied Territories. The commission continues to issue annual reports.
Commission 2001 Report, 17, 20, 155–56, 171, 173–74, Addendum, 6.
Some commission members were affiliated, direcdy or indirecdy, with the Wolf-Specter bill, including the first two chairmen, Rabbi David Saperstein (who endorsed, with reservations, the first version of Wolf- Specter) and Elliott Abrams (whose Center for Ethics and Public Policy endorsed Wolf-Specter), Nina Shea, Richard Land and Archbishop (now Cardinal) McCarrick, who wrote a letter endorsing Wolf-Specter. The first executive director of the commission, Steven McFarland, worked closely with the Wolf-Specter lobbying coalition and, at least initially, opposed the Brady amendment and the Nickles bill. It should be stressed, however, that the various supporters of Wolf-Specter had different reasons for doing so and that they did not share uniform opinions about the merits of particular provisions of the bill. Rabbi David Saperstein, for example, although endorsing the bill on the day it was first introduced in the House, later said that “As committed as we are to combating religious persecution, the legislation as it was originally introduced was problematic for some of us. However, the bill coming to the House floor is substantially different from when it was introduced.... The current version of the bill now addresses some of our most pressing concerns by: broadening the coverage of the bill to include all religious groups in all countries; moving the monitoring office from the White House to the State Department [and by making other important changes]” (quoted by Congressman Frank Wolf, Congressional Record, 14 May 1998, H3269 ).
See House Committee on International Relations, The Treatment of Religious Minorities in WesternEurope 106th Cong., 2d sess. (14 June 2000).
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Gunn, T.J. (2004). The United States and the Promotion of Freedom of Religion and Belief. In: Lindholm, T., Durham, W.C., Tahzib-Lie, B.G., Sewell, E.A., Larsen, L. (eds) Facilitating Freedom of Religion or Belief: A Deskbook. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-5616-7_32
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